O'Stricker v. Jim Walter Corp.

447 N.E.2d 727, 4 Ohio St. 3d 84, 4 Ohio B. 335, 1983 Ohio LEXIS 672
CourtOhio Supreme Court
DecidedApril 13, 1983
DocketNo. 82-403
StatusPublished
Cited by217 cases

This text of 447 N.E.2d 727 (O'Stricker v. Jim Walter Corp.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Stricker v. Jim Walter Corp., 447 N.E.2d 727, 4 Ohio St. 3d 84, 4 Ohio B. 335, 1983 Ohio LEXIS 672 (Ohio 1983).

Opinions

Clifford F. Brown, J.

The issue raised for decision by this court is whether plaintiff’s action is barred under R.C. 2305.10, the statute of limitations for bodily injury actions. Plaintiff claims his injury (cancer) was caused by exposure to asbestos products mined, manufactured and distributed by defendants.

The past decade has seen an explosion of asbestos-related injury claims against various defendants engaged in asbestos industries. A recent Wall Street Journal article reported that some 16,000 damage suits have been filed and each month 450 additional claims are filed.3 These claims follow publication of medical research linking asbestos exposure to various forms of cancer, including asbestosis, mesothelioma, lung cancer, and squamous cell carcinoma of the larynx.4 Asbestos exposure may cause disease many years after inhalation of the fibers. See, e.g., Bunker v. National Gypsum Co. (Ind. 1982), 441 N.E. 2d 8 (twenty-six years); Harig v. Johns-Manville Products Corp. (1978), 284 Md. 70, 394 A. 2d 299, 1 A.L.R. 4th 105 (twenty-one years). Given the long latency period of asbestos cancer, statutes of limitations often present formidable roadblocks to prosecution of injury claims.

In the instant case, defendants raise R.C. 2305.10 as a bar to plaintiff’s claims. Prior to June 12, 1980, that statute provided:

“An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose.”

In 1980, the General Assembly amended that statute by adding the following proviso, effective June 12, 1980:

“For purposes of this section, a cause of action for bodily injury caused by exposure to asbestos or to chromium in any of its chemical forms arises upon the date on which the plaintiff is informed by competent medical authority that he has been injured by such exposure, or upon the date on which, by the exercise of reasonable diligence, he should have become aware that he had been injured by the exposure, whichever date occurs first.”

Plaintiff filed his action prior to the effective date of this amendment to R.C. 2305.10. “It is well settled in other jurisdictions, and it is recognized in Ohio, that the legislature has the power to increase the period of time necessary to constitute a limitation, and also to make it applicable to existing causes of action, provided such change is made before the cause of action is [87]*87extinguished under the pre-existing statute of limitations.” 34 Ohio Jurisprudence 2d 492-493, Limitation of Actions, Section 8. Accordingly, in order to determine whether the legislatively created discovery rule applies to plaintiffs cause of action, we must first determine whether that action was extinguished under the pre-existing statute of limitations. Turning to the unamended statute, we must focus on the language of accrual in the statute. Here, we must determine under unamended R.C. 2305.10 when the cause of action “arose.”

No definition of the subject language appears in the statute. Absent legislative definition, it is left to the judiciary to determine when a cause “arose.” Harig v. Johns-Manville Products Corp., supra, at page 75. In general, a cause of action exists from the time the wrongful act was committed. However, in situations such as the case at bar, the application of the general rule “would lead to the unconscionable result that the injured party’s right to recovery can be barred by the statute of limitations before he is even aware of its existence.” Wyler v. Tripi (1971), 25 Ohio St. 2d 164, 168 [54 O.O.2d 283]. In such cases, a cause of action for damages does not arise until actual injury or damage ensues. See Kunz v. Buckeye Union Ins. Co. (1982), 1 Ohio St. 3d 79 (cause of action against insurer for failure to obtain coverage accrued at date of loss); Velotta v. Leo Petronzio Landscaping, Inc. (1982), 69 Ohio St. 2d 376 [23 O.O.3d 346], paragraph two of the syllabus (“actual injury” rule applied in action for negligence brought by vendee against builder-vendor of completed residence).

In asbestos-cancer cases, most courts which have examined the medical evidence have concluded that bodily injury does not occur contemporaneously with exposure; Eagle-Picher Industries, Inc. v. Liberty Mut. Ins. Co. (C.A. 1, 1982), 682 F. 2d 12, 19, fn. 3; Pauley v. Combustion Engineering, Inc. (S.D. W.Va. 1981), 528 F. Supp. 759, 764; Nolan v. Johns-Manville Asbestos & Magnesia Materials Co. (1979), 74 Ill. App. 3d 778, 788, 392 N.E. 2d 1352, 1360. Compare Insurance Co. of North America v. Forty-Eight Insulations, Inc. (C.A. 6, 1980), 633 F. 2d 1212.5 Nevertheless, defendants urge that the general rule should be applied here, so that plaintiff could only pursue his action if it was filed within two years of defendants’ last negligent act, i.e., plaintiff’s last exposure to defendants’ asbestos products.6

[88]*88Conversely,'plaintiff urges that the cause of action “arose” at the time of injury, i.e., when plaintiff discovered his cancer and the causal relationship to asbestos exposure. This position and its variants are known as the “discovery rule” which has been adopted by a majority of those courts considering the question in the context of asbestos cancer.7

A minority of courts has adopted a “manifestation rule” in this context.8 Finally, a few have adhered to a “last exposure rule” as advocated by defendants.9

This court has previously adopted a “discovery rule” in the context of medical malpractice actions arising from claims that surgeons negligently left foreign bodies in their patients causing injury. Melnyk v. Cleveland Clinic (1972), 32 Ohio St. 2d 198 [61 O.O.2d 430], In that instance, this court analyzed the underlying rationale for statutes of limitations in the context presented, and reached a conclusion consistent with those equitable and policy considerations. We can do no less here.

The rationale underlying statutes of limitations is fourfold: to ensure fairness to defendant; to encourage prompt prosecution of causes of action; to suppress stale and fraudulent claims; and to avoid the inconvenience engendered by delay, specifically the difficulties of proof present in older cases. Harig v. Johns-Manville Products Corp., supra, at page 75. See, generally, 34 Ohio Jurisprudence 2d 487-488, Limitation of Actions, Section 3. With these considerations in mind, the court must weigh the impact on each party of strict accrual (such as the “last exposure rule”) with a more liberal policy (such as a “discovery rule”).

[89]*89Should this court adopt a “discovery rule,” defendants would be faced with an action based on their failure to warn plaintiff of the hazards associated with asbestos use. Such a defense would necessarily rest on documentary evidence of sales of asbestos fireproofing products, the presence or absence of warnings on the products, and the state of knowledge of the dangers of working with asbestos. Such documentary evidence, unlike that requiring the exercise of individuals’ memories, does not typically become less reliable over time.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Wolff v. Dunning Motor Sales
2021 Ohio 740 (Ohio Court of Appeals, 2021)
Lopez v. Sony Electronics, Inc.
247 Cal. App. 4th 444 (California Court of Appeal, 2016)
Harris v. Reedus
2015 Ohio 4962 (Ohio Court of Appeals, 2015)
Green Tree Servicing, L.L.C. v. Olds
2015 Ohio 3214 (Ohio Court of Appeals, 2015)
Jerome Pate v. Huntington National Bank
560 F. App'x 506 (Sixth Circuit, 2014)
Kendall Holdings, Ltd. v. Eden Cryogenics, LLC
521 F. App'x 453 (Sixth Circuit, 2013)
N. Coast Premier Soccer, L.L.C. v. Ohio Dept. of Transp.
2012 Ohio 5297 (Ohio Court of Claims, 2012)
Robert J. Behal Law Office, L.L.C. v. Johnson
2012 Ohio 1932 (Ohio Court of Appeals, 2012)
North Coast Premier Soccer, L.L.C. v. Ohio Dept. of Transp.
2012 Ohio 5296 (Ohio Court of Claims, 2012)
Cloer v. Secretary of Health and Human Services
654 F.3d 1322 (Federal Circuit, 2011)
In re Estate of Centorbi
2011 Ohio 2267 (Ohio Supreme Court, 2011)
Flagstar Bank, F.S.B. v. Airline Union's Mortgage Co.
2011 Ohio 1961 (Ohio Supreme Court, 2011)
Dalesandro v. Ohio Dept. of Transp.
2010 Ohio 862 (Ohio Court of Claims, 2010)
Jones v. Columbus State Community College
2009 Ohio 7182 (Ohio Court of Claims, 2009)
Schnippel Constr., Inc. v. Profitt
2009 Ohio 5905 (Ohio Court of Appeals, 2009)
Cundall v. U.S. Bank
2009 Ohio 2523 (Ohio Supreme Court, 2009)
Adcor Industries, Inc. v. Bevcorp, LLC
252 F. App'x 55 (Sixth Circuit, 2007)
Musick v. Dutta
854 N.E.2d 1114 (Ohio Court of Appeals, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
447 N.E.2d 727, 4 Ohio St. 3d 84, 4 Ohio B. 335, 1983 Ohio LEXIS 672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ostricker-v-jim-walter-corp-ohio-1983.